The chair of Derby Teaching Hospitals Foundation Trust, John Rivers, told HSJ that unless the CQC urgently reconsidered its approach there were serious risks for the NHS. He said pressure from complaints could cause some trust boards “to implode”.

‘The fit and proper person test came into force last November and has led to nearly 70 complaints against NHS chief executives and board members.’

The regulations require trusts to be assured people are fit and proper to be employed. Directors can be deemed “unfit” to sit on boards if they have been involved in “serious misconduct or mismanagement”. The CQC can require the removal of unfit directors.

The report, released today, completely exonerates Ms James. It describes her as an “exemplary” chief executive and the allegations as “misguided”.

The report said the CQC contributed to substantial delays to the investigation by failing to pass on vital information and evidence, which led to witnesses being re-interviewed and the scope of the probe being widened.

The CQC suggested the trust use barristers to investigate the complaints after it rejected an initial assessment by Mr Rivers in April, but then declined to meet with him to discuss the issue further.

The authors, Charles Corey-Wright QC and Katharine Scott, said: “As a result the investigation has been both substantially delayed and extended in terms of work, by a number of months, and will end up being significantly more expensive. We believe the costs will have doubled from their original estimate.”

The trust estimates the final cost of the investigation will be £200,000.

Mr Rivers said it was a “mistake” for the CQC not to meet him, adding: “I understand the CQC’s need for independence but that shouldn’t prevent them entering into some form of dialogue and offering support and guidance to trusts.”

Without better guidance other trusts would be forced to restart the process, he said.

“That is very time consuming, costly and it runs the highest risk of getting something wrong,” he added. “These sorts of pressures can cause a trust to implode, and that’s not in anybody’s interest. What possible advantage is that to the NHS?”

A CQC spokesman said: “Following the receipt of concerns, the CQC asked [the trust], to consider the concerns, and provide an explanation of how it was meeting the fit and proper person requirements in the light of the issues raised. As a result the trust commissioned an independent review into the all concerns that had been brought to its attention. This approach was supported by CQC. The resulting report has provided the necessary level of assurance to CQC that the trust is meeting its duties under the [requirements].

“We do not accept that delays in sending information to the trust were the cause of significant delays to the investigation. The matters covered by the information we held should have been known to the trust and in some cases were already in the public domain. The main delay was caused because we needed to ask for further assurance. The first report we reviewed from the trust did not give us the assurance we needed.”

Ms James, who intends to retire at the end of December, said: “When a chair is faced with investigations into their own chief executives they are very isolated and I think for the CQC not to provide any support is unfortunate.

“The legislation is designed to stop inappropriate people being directors but because of the way it is being run the danger is that it deters highly appropriate talented managers from ever being in the position where this sort of witch hunt could happen against them.

“I feel I have had to prove my innocence rather than anybody having to prove my guilt.”

Sir Stephen Moss, a non-executive director at Derby and former chair at Mid Staffordshire FT, also warned of dangers for the NHS if the regulations distracted organisations.

He said: “Over the last few years we have all been painfully aware of what happens when a board isn’t totally focused on what matters and more than most people I have a very clear view on that. I could see we were still focused on what matters at Derby but there was a very real personal price being paid for that. What we have to avoid doing is losing the spirit of this legislation by not getting the process right.”

The CQC has been criticised that its fit and proper regulations process is not transparent, with decisions to reject complaints being made without explanation, despite a number involving employment tribunal cases where people have been implicated in unfair action against whistleblowers.

HSJ has decided not to publish the names of directors still subject to complaints until the final outcome of the CQC’s process and only when people are identified as unfit.

David Drew, who made the original complaint against Ms James, rejected the report’s findings and also criticised the CQC.

He said he was shocked that the CQC had not passed on his evidence, adding: “The CQC made this up as they went along. They don’t engage and they run it all from on high.”

He said the process needed to be more transparent for those making complaints.

“Some of these people are very angry and puzzled as to why some of their complaints made no progress. Some of the complaints included examples where there were tribunals, which talked about grossly unfair treatment of people who had made protected disclosures and suffered a detriment as a result. Yet these complaints were dismissed by CQC. We need answers about that.”

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